What Causes Divorce?

By Attorney Gregg Herman
May 8, 2013

Perhaps the two most common questions I am asked by people who learn that I am a divorce lawyer are: “What causes most of the divorces I handle?” and “How can I prevent becoming one of your clients?”

The answer to the first one is fairly simple, but the answer to the second is far more complicated.

My answer to the first question has to be taken into context. Most of the cases I see involve people of a higher than average socio-economic status. While I have handled cases involving domestic violence, substance abuse, alcoholism and financial hardship, these issues tend to be less prevalent in higher socio-economic status cases.

In my cases, by far the most common cause for divorce is simply incompatibility. Personalities are not static; people change over time, sometimes for the better and sometimes for the worse. And occasionally, the changes are neither bad nor good — they are just not compatible with the changes in the other spouse’s personality.

When there is infidelity, it is almost always a symptom of a failing marriage, rather than the underlying cause. That is not to say the spouse is wrong for lying or cheating. If a marriage is failing, it would be far better to end the marriage first before exploring other romantic or physical options.

But generally, there are temptations for married people, illustrated by President Jimmy Carter’s famous confession that he had “looked on many women with lust.” Where the underlying marital relationship is strong, however, neither spouse will act on temptations. It is where the underlying relationship is already damaged that a spouse will violate his or her marital vow to forsake all others.

It is this very erosion of the marital relationship that makes divorce difficult. The legal issues in most cases are typically not that difficult to resolve. Absent abuse or geographic distance, placement of children is so commonly shared equally that at times I wonder if it is not mandatory (and many couples seem to think that it is).

Child support guidelines, once merely a suggestion, are now uniformly applied to all but the most unusual cases. And given the increasing number of women in the workforce and a trend toward pay parity, even maintenance cases are not as common as back in the day of the standard stay-at-home mom.

But the emotions that led to filing of a divorce do not disappear when the filing fee is paid. After all, the parties have the same personality, and the incompatibility that led them to split frequently causes emotions to overwhelm the legal issues that need to be resolved. One means of ameliorating this problem is connected with the second question of how to preserve marriages.

My problem with this question is two-fold. First, I typically see marriages after they have reached the point of no return. Second, my training is as a lawyer, not a mental health expert. Still, observing the dissolution of marriages for many years has allowed me to derive some opinions.

Permit me to do it by analogy. A number of years ago, a colleague had a tree snap in two during a major windstorm. Prior to that storm, from all external evidence, the tree seemed to be thriving. It grew new leaves every spring and looked healthy. Once it snapped, you could see that it had been rotting for a long time.

Had my colleague been aware that the tree was rotting early enough, he could have treated it and perhaps saved the tree.

The same goes for marriage.

Divorces are not instantaneous mutations in characters. Rather, they are the product of a slow, degenerative process that takes a long time. When left untreated, a sudden event, such as acting on a sexual temptation, is the equivalent of the gust of wind causing a structural failure.

The only effective treatment is a course of counseling before the erosion of the relationship has proceeded too far. Even if not successful, by tackling these issues, the parties often can prevent the divorce from becoming a war.

Unlike lawyers, whose training includes engaging in adversarial combat (otherwise known as litigation), mental health providers are trained to help people find peace — both within themselves and with others.

Therefore, all married couples should seek counselors before engaging lawyers. Not because the law requires it, but because it is the best treatment available. If it can preserve the marriage, great. But, if not, it may have the desirable (if secondary effect) of making the process less violent and more peaceful.

This article originally appeared in Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.